Warren Day, 66, was arrested in Pembroke Pines, Florida for possession of child pornography. According to news reports, investigators from the South Florida Internet Crimes Against Children Task Force received a tip from the National Center for Missing and Exploited Children that indicated a computer user was uploading and sharing child pornography.
Warren Day has been booked into the Broward County Jail with 50 counts of possession of a photograph depicting a sexual act by a child. Since the standard bond on that type of charge is $10,000, Day’s bond is presently set at $500,000.
As a criminal defense lawyer, I can tell you that the very first thing that must be done on this case is a motion to reduce bond. As bad as these charges may be, the law says that Day is entitled to a reasonable bond. When a criminal defendant faces a multi-count indictment, bond amounts become so excessive it is as if there was no bond allowed.
In situations like these, the law gives Day’s judge the discretion to lower the bond to something that is affordable while still guaranteeing his presence in court. For those hardliners out there reading this and wondering how I can advocate a reduction in bond, I say you first must educate yourself and understand the purpose of bond.
Bond is not meant to be punitive.
It is not intended to be a financial sanction for breaking the law. In fact, as we sit here and discuss this, Warren Day is innocent. His guilt has not yet been proven and he has not pleaded guilty to any charge.
Rather, the only reason why bond exists is to guarantee that the defendant shows up for court. In a sense, bond is like an insurance policy for the judge. When a person bonds out of jail, he/she gives money to the court to guarantee that they will come back. If the defendant ever fails to appear for court or violates a condition of his/her release, such as a no contact order with a victim, the judge can revoke the bond and the courts get to keep the money.
Hence the term “bond.”
Again, if I was Day’s criminal defense attorney, the very first thing I would do, as in right away, is file an immediate motion to reduce bond. When considering this motion, the judge will evaluate the extent of flight risk, the risk of re-offense, and danger to the community.
In all, I think a bond of $50,000 with travel restrictions would be entirely appropriate. If necessary, Day can be placed on a GPS electronic monitor that tracks his every movement. The judge can also order Day not to use any computers, or internet connected devices while on bond.
Again, I must reiterate, the purpose of bond is not to punish the defendant but rather to guarantee his re-appearance in court. Since Warren Day was arrested for a bondable offense, he is entitled, as a matter of law, to have a reasonable bond that he can afford.
According to news reports, BSO detectives obtained a search warrant to search Day’s residence. Upon arriving at his house to execute the warrant, police claim Day was actually on the computer viewing child pornography at that very moment.
First and foremost, for the evidence obtained during this search to be admissible in court, the warrant itself must have been valid and the police must have found evidence in the specific locations delineated in the warrant.
To understand this concept, one must first realize that police have no right, whatsoever, to enter and/or search private property. Only under certain limited exceptions can police get a permission slip from a judge that allows searches when exigent circumstances do not exist. This permission slip is called a warrant.
Warrants are not general admission passes either.
Rather, they are specific and detailed, like an airline ticket is to flight, seat, and row. Moreover, they must be based on credible, specific, and ripe information. For instance, if a warrant is based on information that is over a month old, it is considered stale. If a warrant permits police to search someone’s car, that does not mean they have the right to search that person’s house.
To learn more about illegal search and seizure, click here.
The bottom line is this: if police searched Warren Day’s home with a bad warrant or if they searched in areas not specifically permitted by the warrant and evidence was unlawfully obtained as a result, a judge should be suppress that evidence.
If a judge were to suppress evidence, prosecutors would most likely be unable to proceed with their case. In the alternative, the case itself may be cut down to fewer counts. Either way, when a criminal defense lawyer challenges an illegal search, the very backbone of the prosecution’s case may be at stake.
It I were Warren Day’s criminal defense lawyer, I would begin my case analysis with a review of all the facts surrounding the search warrant, including the warrant application. If the evidence shows the warrant or the search were illegal, then I would file a motion to suppress.
As you may recall, this case began with a tip from the National Center for Missing and Exploited Children. In essence, this tip allegedly revealed that someone was uploading child pornography to the internet. Whether that person was identified as Warren Day at that time is presently unknown.
The question is, how did they learn that child pornography was being shared? Did they solicit the imagery? Did they access Day’s computer system or online file sharing account in some way? Did they hack his computer? What role does electronic forensic evidece play in this case? How did they learn of Day’s identity? Remember, to prove his/her case, the assigned prosecutor must prove the identification of the true offender beyond and to the exclusion of every reasonable doubt.
To learn more about proving identification in a criminal case, click here.
I ask these questions for one main reason: to determine if the information was obtained lawfully. Let me explain…
I absolutely doubt that this is the very first time that the National Center for Missing and Exploiting Children has provided the South Florida Internet Crimes Against Children Task Force with a tip about someone uploading child pornography. If these two entities have a history of such tips, the National Center for Missing and Exploited Children may have been acting as an agent of law enforcement. Whether this is true or not will all depend on the specific facts of this case and of any prior cases where tips were provided to law enforcement or South Florida Internet Crimes Against Children Task Force.
If the National Center for Missing and Exploited Children was in fact acting as an agent of law enforcement, even if only in a surveillance capacity, then they would have needed a warrant to intrude into Warren Day’s private computer system, files, or online accounts.
However, in my experience, these cases come to light when someone who possesses child pornography shares the images or videos with the wrong person. That person may be a police officer, a federal agent, or a law abiding citizen who reported the situation to police.
This leads me to my next point…
Once Warren Day’s criminal defense lawyer completes his/her review of the case, a decision about whether or not to go to trial must be made. To understand what this entails, we must first begin with the concept of a plea bargain. When someone enters into a plea agreement with prosecutors, a person enters a plea of either guilty or no contest and is then sentenced to some kind of sanction.
By entering into such an agreement a person has made the conclusion that the sanction they are accepting is not as bad as the one they will get if they lost at trial. When a good criminal defense attorney advises a client to enter into a plea agreement it is because he/she does not believe that the likelihood of winning at trial is outweighed by the risk of a heavy sentence if the trial was lost.
In a case like Day’s, I can tell you that the Broward State Attorney’s Office will not offer anything less than 10 years in prison as a plea bargain. In fact, given the amount of imagery and the fact that Day has a prior criminal case for a sexual offense, I would expect the plea offer to be at least 15 years in prison.
Given the fact that Day has 50 counts of 3rd degree felonies, his minimum prison sentence will likely add up to decades of time. Therefore, Day must consult with his attorney and make a very, very well thought out decision.
At this stage of the case it is impossible to determine whether a trial is preferred over a plea bargain or if a plea bargain is preferred over a trial, assuming a motion to suppress is not a winning option. Only after a very thorough case investigation can Day’s criminal defense attorney advise him about the wisdom of going to trial. Ultimately, this will be decision Day has to make on his own.
Fifth Issue: Is Day Eligible for a Downward Departure?
In Florida, a criminal defendant is subject to certain criminal sentencing guidelines. In essence these guidelines give a numerical score to every crime in Florida. When a person is facing a felony indictment, the more charges he/she has, the more points he/she is scored, and therefore the more minimum prison he/she may be subject to. For a lengthier discussion on sentencing in Florida, click here.
While this score system defines certain minimum prison sentences, Florida law also allows a judge to depart from these guidelines, but only under certain limited conditions. To obtain such a departure, a criminal defendant would have to file a motion for downward departure and a hearing would need to be had before the judge.
If Warren Day is diagnosed with a mental health disorder and is amenable to treatment, he may be able to get a reduced sentence, although I doubt it will be one that does not include a prison sentence of some sort.
Therefore, one of the first things I would do in this case is to have a forensic psychologist perform a psycho-sexual evaluation on Day. By the sounds of it, I am sure Day has some kind of mental health disorder that can be diagnosed.
In a downward departure scenario, it must be emphasized that a criminal defendant would not be challenging his guilt. A person would have to plead guilty and throw themselves on the mercy of the court. You give up your right to trial, your right to confront the State’s witnesses, to present your own evidence, to testify on your behalf, among other rights.
However, by taking responsibility for one’s actions and establishing the need for treatment, a judge may, and emphasis on the word “may,” be convinced to sentence the criminal defendant to something below the guidelines and replace a portion of prison with probation and mandatory treatment.
I must emphasize a number of things before I finish. First and foremost, Warren Day is innocent until proven guilty. All the allegations mentioned above are just that – allegations. Second, much more information is needed before any concrete conclusions can be made or any legal strategy can be relied upon. What works in one case may not work in another.
Finally, if Warren Day is smart, he will hire the most intelligent and experienced criminal defense lawyer he can find. This is an extremely serious case and there is a lot on the line, not to mention many decades of Mr. Day’s life.
Ultimate, I hope justice is served.
If evidence was obtained illegally, it should be suppressed. If giving Warren Day treatment would help the rest of us by addressing his sexual issues, then I say that is the best thing to do for society. However, if the evidence proves guilt and a downward departure would be inappropriate, then I am sure prosecutors will get the prison time they are looking for.